If there has been family violence or child abuse or the risk of these, you do not have to take part in family dispute resolution before filing an application at court. See s.60J of the Act. Tell the court registry or the family dispute resolution practitioner immediately about the violence or risk. The court case must be managed by the judge so that it protects the people involved from family violence or the risk of family violence.
See ‘Family dispute resolution’ in ‘Chapter one – Alternatives to going to court’.
If a ‘Notice of child abuse or family violence’ has been filed in the Family Court with allegations of very serious physical abuse and/or sexual abuse of children, the application is most likely to be listed to the Magellan Program.
Magellan is a special court list for cases involving the most vulnerable children. The case is managed by the judge and the Magellan registrars. Expert investigations and assessments are ordered. An independent children’s lawyer is appointed for every child. The court aims to complete the case within six months. A family consultant will follow up the case after the trial is finished.
See ‘Family consultants and family counsellors’ and ‘Independent children’s lawyer’ in ‘Chapter four – Children’.
Words in bold are explained in ‘What do these words mean?’ at the front of this booklet.
When disputes cannot be sorted out through family dispute resolution, starting a court case is an option for both or all parties.
Most family law cases are now heard in the Federal Circuit Court. You will need to decide which court is best for the kind of case you are involved in. The decision about where to apply can depend on several things.
Where you live
If you live in a metropolitan (city and suburbs) area you apply directly to the Family Court or to the Federal Circuit Court, depending on some of the other factors listed below.
If you live in regional (country) Victoria you can apply through the local (State) Magistrates’ Court to begin with. Interstate readers should check if this is possible in their state or territory.
The Magistrates’ Court makes orders by agreement. It cannot hear disputed cases (where parties disagree with each other), unless both parties agree to the court hearing the case. If your case cannot be sorted out in a Magistrates’ Court, it can be given to the Family Court or Federal Circuit Court to hear. The family law courts in metropolitan Melbourne are located in the city and at Dandenong. The court also travels to outer suburban and country areas for sittings. A sitting means when the court is operating. These sittings are described as ‘circuits’.
The courts usually sit for one week in each area. To get a list of dates when the court operates in the country (circuit dates), contact the court or visit their website. Go to www.familylawcourts.gov.au or call 1300 352 000.
If you want your case to be heard in a particular circuit, give your application to the court with a letter asking for this to happen. If you have already started your court case and want your case to be transferred to circuit, ask for an order from the court to do this. If the other party agrees, ask for a ‘transfer order’ by consent.
The Family Court and Federal Circuit Court can also transfer cases from one court to the other.
Children’s and property cases are held in both the Family Court and the Federal Circuit Court. Some more difficult or detailed children’s cases are only heard in the Family Court. For example, cases likely to run more than two days.
The Family Court is the only court able to consider complex issues to do with marriage. For example, whether a marriage is legal or has been annulled (cancelled). These types of applications are rare.
Application costs are different between the Family Court and Federal Circuit Court. If more than one court can hear your case, you can choose the cheaper option.
If you apply to the Family Court you have to follow the pre-action procedures described earlier, unless exceptions apply.
See ‘Pre-action procedures’ in ‘Chapter one – Alternatives to going to court’.
If you are applying for a parenting order in either court, you first have to make a genuine effort to sort out your dispute, although there are some exceptions to this.
See ‘Family dispute resolution and parenting orders’ in ‘Chapter one – Alternatives to going to court’.
You can also go to www.familylawcourts.gov.au or call 1300 352 000 for assistance. This service helps people who need advice on divorce, family law procedures and court services.
The person who files (gives) an application to the court first is called the applicant. The person who files a response to an application with the court is called the respondent. It does not affect your case if you are the applicant or respondent.
The courts divide their forms into interim and final orders. Interim orders are temporary orders. They apply until the court makes a final decision or the case is sorted out by agreement. You need to say in the application form if you want interim and final orders, or just one or the other.
If you are served (given) an application from your ex-partner or the other party in the dispute, you can choose to:
disagree with some or all of the orders the other person has asked for and apply for different orders. You can do this by filing a Response.
agree to the orders the other person has asked for. In this case you, sign a consent order and file a ‘Notice of address for service’.
do nothing and allow the court to decide if it will grant orders in favour of the applicant.
Do not ignore any application if you do not want those orders made. The applicant may get those orders against you if you do not take part in the court case.